The charges against defendant arose out of a domestic fight between
defendant and Payne, who is his ex-girlfriend and the mother of his two daughters. The
children, ages 5 and 3 at the time, were home during the fight. Payne and defendant had
separated about a month before, and defendant was at Payne's home to watch the children.
According to Payne's report to the investigating police officers, the fight began over an
argument about the use of the phone. In the course of the argument, defendant threw the
phone against the wall, breaking it. At that point, according to what Payne told the
officers, the confrontation escalated to

"pushing and shoving. [Payne] pushed [defendant] back. This occurred in
the bedroom to the living room area. She got the phone and took it outside
to use the phone. He unplugged the phone from inside. She had to force
her way back into the residence.

"They argued some more, during which time he hit her in the face.
She believed it was with an open hand, but she couldn't recall at that time.
He knocked her to the floor a couple of times, and she fought back, left the
residence, went to the neighbor's house where she had them call 911. "

When the officers responded to the report of the fight, they observed that Payne had a
small cut on her lip that appeared to be a fresh injury and that one of her cheeks was a
"little red." Defendant admitted to the officers that he slapped Payne with an open hand
and pushed her down, but he claimed that he did so only after Payne attacked him
physically. Payne told the officers that defendant was the initial aggressor, but she
admitted to reacting by hitting and shoving him.

The officers arrested defendant. In charging him with felony assault, the
state alleged that the assaultive conduct was witnessed by the older of the two children.
Specifically, the indictment pleaded:

"The defendant, on or about 03/16/00, in the County of Umatilla and State
of Oregon, did unlawfully and intentionally cause physical injury to Noel
Payne by striking her in the face, and the defendant's conduct was witnessed
by [C], the minor child of the defendant and Noel Payne."

Consequently, the burden fell on the state to prove that C, the older of the two children,
witnessed defendant striking Payne in the face. See State v. Reynolds

At trial, the state did not call C to testify about what she had witnessed. Nor
did the state establish that the officers questioned the children as part of their
investigation or that the officers asked Payne or defendant any questions about the
children's whereabouts during the fight or other facts that might bear on what either child
saw, heard, or understood to be happening. To establish where the children were when
the assault occurred, the state relied entirely on Payne's testimony, specifically the
following answers to the prosecutor's questioning:

"Q Did you remember telling the neighbor that the defendant hit you and
you needed the police?

"A Yes.

"Q The children were home at the time?

"A Yes.

"* * * * *

"Q Where were the kids?

"A I believe the majority of the time they were in their bedroom when
we started--

"Q Where were you--

"A When we started arguing I sent them to their room.

"Q Okay, you said the majority of the time, where were they the rest of
the time?

"A Kitchen, bathroom, tried to go outside and play. I told them to stay
in the house, go to the bedroom.

"Q So they were moving around the house at the same time you were
moving around the house?

"A At the beginning of our argument they tried to go outside to play, and
I told them to go to their room because I couldn't keep an eye on them while
I was having an argument with [defendant]."

The state also established, through Payne's testimony and that of the
investigating officers, that Payne's house was very small, had thin walls, and that noises in
one area of the house could be heard in the other areas of the house. As Payne described
it, "you can hear someone sneeze across the house." According to one of the
investigating officers, activities in other parts of the house could "most definitely" be
heard elsewhere in the house. That officer also explained that, because of the house's
small size, "[u]nless you're in another room with a closed door, * * * you'd still be able to
see what's going on [in another area of the house] unless you had this closed door in front
of you."

Payne, however, was not asked for further details that might establish what
the children likely heard or saw. By the time of trial, Payne was a less-than-fully-cooperative witness for the state. Payne had recanted her statements to the officers and
denied that defendant had slapped her during the fight. She instead claimed that the door
was jammed when she tried to leave to call 9-1-1 and, as she forced it open, it hit her in
the lip. Payne also testified that she sent the children to their bedroom so that they would
not "perceive" the fight. Payne was never asked about the noise level of the fight more
generally, the sound made when defendant hit her in particular, whether the children left
their bedroom door open, whether she knew what the children were doing while in their
bedroom, or similar facts.

At the end of the state's case-in-chief, defendant moved for a judgment of
acquittal, arguing that the evidence was insufficient to establish that the assault was
witnessed by either of the children. The trial court denied the motion. On appeal,
defendant renews the arguments that he made to the trial court, urging that a jury could
reasonably infer from the evidence that the children could have heard their parents
arguing but that there was no basis for a reasonable inference that either child perceived
the assault specifically. The state counters that, viewed in the light most favorable to the
state, a jury reasonably could infer "that the children actually saw defendant's assault, and
it is virtually certain that they heard the sound of defendant's hand striking their mother's
face wherever they were."

In establishing that element, the state may rely on circumstantial evidence
and reasonable inferences flowing from that evidence. See Delgado v. Souders, 334 Or
122, 135, 46 P3d 729 (2002); State v. Beason, 170 Or App 414, 425, 12 P3d 560 (2000),
rev den, 331 Or 692 (2001). An inferred fact must be one that the jury is convinced
follows beyond a reasonable doubt from the underlying facts. State v. Lopez-Medina, 143
Or App 195, 200, 923 P2d 1240 (1996). But the requirement that the jury be convinced
beyond a reasonable doubt does not mean that a particular inference must inevitably
follow from the established facts. Beason, 170 Or App at 423-24. Rather, the established
facts may support multiple reasonable inferences and, if they do, which inference to draw
is for the jury to decide. State v. Hall, 327 Or 568, 574, 966 P2d 208 (1998); Beason, 170
Or App at 425.

Whether particular circumstantial evidence is sufficient to support a
particular inference, however, is a legal question for a court to decide. Delgado, 334 Or
at 135. "There is a difference between inferences that may be drawn from circumstantial
evidence and mere speculation." State v. Vaughn, 175 Or App 192, 201, 28 P3d 636
(2001). Reasonable inferences are permissible; speculation and guesswork are not. See
Lemons et al v. Holland et al, 205 Or 163, 192, 284 P2d 1041 (1955) ("Verdicts of a jury
must be based upon substantial evidence, not upon speculation."). As we have observed
before, the line between permissible inferences and impermissible speculation is
"sometimes faint." Hutchinson and Hutchinson, 187 Or App 733, 741, 69 P3d 815
(2003). The line is also sometimes difficult to articulate with precision. But we agree
with the federal courts, which frequently describe it in these terms:

"The line between a reasonable inference that may permissibly be drawn by
a jury from basic facts in evidence and an impermissible speculation is not
drawn by judicial idiosyncrasies. The line is drawn by the laws of logic. If
there is an experience of logical probability that an ultimate fact will follow
a stated narrative or historical fact, then the jury is given the opportunity to
draw a conclusion because there is a reasonable probability that the
conclusion flows from the proven facts. As the Supreme Court has stated,
'the essential requirement is that mere speculation be not allowed to do duty
for probative facts after making due allowance for all reasonably possible
inferences favoring the party whose case is attacked.' Galloway v. United
States, 319 US 372, 395, 63 S Ct 1077, 87 L Ed 1458 (1943)."

Tose v. First Pennsylvania Bank, N.A., 648 F2d 879, 895 (3d Cir), certden, 454 US 893
(1981). (4) Consistently with that description, we have held evidence insufficient to
support an inference when the conclusion to be drawn from it requires "too great an
inferential leap"--that is, when the logic is too strained. See, e.g., Lopez-Medina, 143 Or
App at 201. Likewise, evidence is insufficient if it requires the stacking of inferences to
the point of speculation. State v. Piazza, 170 Or App 628, 632-33, 13 P3d 567 (2000)
("the stacking of inferences that the state urges is simply too speculative"); Wood v.
Baldwin, 158 Or App 98, 103, 972 P3d 1221, rev den, 329 Or 61 (1999) (similar
conclusion).

In this case, we agree with defendant that the state's evidence falls on the
side of speculation, not reasonable inference. As earlier noted, the state had no direct
evidence of what the children saw or otherwise perceived; the state's case as to what C
"witnessed" was purely circumstantial. In attempting to prove that element
circumstantially, the state relied on two predicate facts: the children's presence in the
house at the time of the assault, and the ease with which activities in one area of the house
could be easily seen and heard elsewhere in the house. In effect, the state's theory was
that: (1) the children were in the house; (2) by being in the house, they could have heard
or seen defendant strike Payne; and therefore (3) the jury could infer that C heard or saw
the assault with sufficient awareness to have witnessed it.

But the third step in the state's line of logic requires several additional
intermediate inferences. To infer that the children heard the assault, as distinct from the
general argument and fight between the parties, a factfinder would first have to infer that
the open-hand slap made a distinctive sound. We agree that a jury could so infer, because
such an inference is consistent with common experience. See Skeeters v. Skeeters, 237 Or
204, 214, 389 P2d 313 (1964) (although a jury cannot be permitted to speculate, it may
rely on common experience to draw inferences). But that inference, without more, would
not support the further inference that the children actually heard the assault. The assault
was a fleeting event in what was otherwise a more protracted fight marked by argument
between Payne and defendant, the throwing of at least one object against the wall (the
phone), Payne's forcible reentry into the home, and mutual shoving and pushing
throughout the fight. The record suggests that defendant slapped Payne as they argued
and pushed and shoved each other. Did the sound of the slap rise above the noise of the
argument or the other sounds of their physical fighting? The record is silent. No
predicate facts assist in informing any inference, and any conclusion would constitute
speculation or guesswork.

Even if a factfinder could permissibly infer that the sound of the slap rose
above the noise of the argument and fight more generally, the question remains: Did the
children hear it or see it, and did C in particular identify it for what it was--that is, the
sound of defendant slapping Payne? Again, more intermediate inferences are required.
Common experience would permit one such inference--i.e., that C, at age five, was
sufficiently mature to distinguish the assaultive conduct from other aspects of the fight.
But even that inference requires the further inference that the children--and the five-year-old in particular--paid attention to the fight. On that point, common experience suggests
many possibilities. The children may have been playing and paying little or no attention
to the fighting. Or the children may have wanted to distract themselves from their
parents' fighting and did so in some other way. Conversely, they may have wanted to
know what was happening and listened or watched intently. For them to have actually
seen the fight, the bedroom door would have to have been open, perhaps fully, depending
on the configuration of the room and the children's positions inside it. Again, no
predicate facts assist in logically inferring what the children were doing or what they
actually saw and heard. Any conclusion necessarily would be speculative or involve
guesswork.

In short, the minimal circumstantial evidence presented by the state requires
too much stacking of inferences and, ultimately, too great an inferential leap. For that
reason, we agree with defendant that the evidence is legally insufficient to permit a
reasonable inference that C personally saw, or through some other first-hand sense or
sensation was conscious of, and recognized, the assaultive conduct as it occurred, thereby
"witnessing" it.

In so concluding, we do not discount the difficulty that the state faced in
this case, as in so many domestic violence cases. Payne had recanted and denied that the
assault occurred at all. She was no longer a cooperative witness and was not particularly
helpful in establishing facts that could serve as predicates for the inference the state
needed. The investigating officers, who may have been concerned foremost with
securing the victim's and children's safety and sorting out the who-did-what-to-whom
aspects of the assault, apparently did not ask Payne, defendant, or the children themselves
about the children's whereabouts or activities at the moment of the assault. And the older
child was not called as a witness, presumably--and understandably--so that she would not
be forced to testify against her own father or relive the fight, which could compound any
trauma caused by the underlying events. But even in the most difficult-to-try cases,
speculation cannot be permitted to substitute for evidence, and the state's burden cannot
be relaxed to the point where less evidence equates to more proof by giving the state the
benefit of a broader range of imaginable possibilities. Here, the established facts are
simply too few and too limited to support the inference that the state needed to aggravate
the assault to a felony. For those reasons, we conclude that defendant's motion for
judgment of acquittal should have been granted.

Conviction for felony assault in the fourth degree reversed; remanded for
entry of judgment of conviction for misdemeanor assault in the fourth degree and for
resentencing; otherwise affirmed.

"(3) Notwithstanding subsection (2) of this section, assault
in the fourth degree is a Class C felony if the person commits the
crime of assault in the fourth degree and:

"* * * * *

"(c) The assault is committed in the immediate presence of,
or is witnessed by, the person's or the victim's minor child or
stepchild or a minor child residing within the household of the
person or victim.

"(4) For the purposes of subsection (3) of this section, an
assault is witnessed if the assault is seen or directly perceived in
any other manner by the child."

In all events, the state's assertion proves too much. Inferring from Payne's
testimony that the children disobeyed her and did not go to their room leaves the record
completely devoid of testimony as to where they did go. They may have gone to their bedroom;
they may have been in some other part of the house; they may have been in the same room with
Payne and defendant; or they may have gone outside to play, as they wanted to do. In short, were
we to infer, as the state urges, that the children disobeyed Payne, any conclusion as to where they
then went would be entirely speculative.